Rountree & Co. v. Gaulden , 123 Ga. 449 ( 1905 )

Evans, J.

(After stating the facts.) 1, Upon the trial of a claim case the burden of proof is upon the plaintiff in execution in all cases where the property levied on is, at the time of such levy, not in possession of the defendant in execution. Civil Code, §4624. Proof of possession of the land by the defendant in execution since the judgment casts the onus upon the claimant to prove his title. Brown v. Houser, 61 Ga. 629. When the plaintiff in .execution introduced in evidence the execution, with the levy endorsed thereon, and proof that W. M. Jones was in possession of the land levied on since the judgment, the burden was on the claimant to show a better title. The claimant assumed this burden by showing a chain of title from the State to himself. The possession of the defendant, although for more than twenty years, wa's insufficient to establish a prescriptive title. His possession' was joint with his wife, who was an heir of Hardy E. Hunter. The defendant was also the administrator of Hardy E. Hunter. Hence Jones’s possession was shown to be not in his own right, but in the right of another. It also appears from the evidence that Hardy E. Hunter died in 1855, leaving as his heirs at law a widow and five children. One of the children, Jimpsie, died without having married. After his death the heirs of Hardy E. Hunter were five in number. In 1900 four of these heirs at law, who seem to have received their shares of. the estate, as evidenced by their receipts to the administrator, conveyed their interest in the unadministered estate of their ancestor to their coheir, who had not received his distributive share. If the heirs who had received their shares of the estate had refused to quitclaim their interest'in the unadministered estate of their ancestor to the hejr who had not received bis portion, the latter could have recovered the unadministered assets of his ancestor, or enough thereof to equalize him with the others, in an appropriate proceeding. By their conveyance the heirs who had been settled with simply accorded to their coheir his right as a distributee in the estate which went into the hands of the administrator. In no event would the administrator have the right to claim any part of the unadministered assets of his intestate as his individual property simply because he had made a settlement with some of the heirs. The claimant’s title was perfect, and the court might well have directed a verdict in his favor.

2. The following question was propounded to M. J. Jones, a witness for claimant, who testified by interrogatories, “ State, if you know, whether or not W. M. Jones ever claimed the north half of lot of land 473 in the 12th district of Brooks county ? ” To which question the witness answered, “Never to my knowledge did he claim it.” The plaintiffs filed their written objection to this interrogatory, on the ground that it was leading, illegal, incompetent, and irrelevant. The objection was overruled. This evidence was competent. If Jones’s possession is relied on to change the onus, it is very pertinent to inquire into the character o& the possession. If Jones’s possession for twenty years is to form a basis for prescription, it is likewise relevant to ascertain whether his possession was in his own' right or in that of another.

3. One complaint of the plaintiffs in the motion for new trial is that the court refused to allow a witness for the plaintiffs to answer a certain question. The answer which the witness would have made is not given. “An assignment of error upon the refusal of the court to allow a witness to answer a specified question propounded by the party calling him is not properly made, unless it states what evidence was thus sought to be elicited, and that the court was informed thereof at the time of the ruling.” Bigby v. Warnock, 115 Ga. 386 (4).

4. Plaintiff tendered a mortgage, made by W. M. Jones and M. J. Jones to A. J. Rountree, dated April 24, Í874, upon 28 1-2 acres of the land levied upon. The court excluded the mortgage. Even if the evidence was admissible to prove the defendant’s adverse possession of a portion of the land involved, it could not have authorized a different result, as it was undisputed that at the time the mortgage was executed the property belonged to the estate of Hardy E.-Hunter, and that Jones originally went in possession as administrator of Hunter, and had never notified the heirs of Hunter of his adverse claim.

5. The charge of the court covered the substantial issues of the case, and was not open to the criticism made upon it. The verdict was demanded by the evidence, and the denial of a new trial was proper.

Judgment affirmed.

All the Justices concur, except Simmons, ■C. J., absent.